Access to Trials and Judicial Proceedings

Access to Trials and Judicial Proceedings

Legal trials are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper.1


Introduction to Fair Trial versus Free Press

Restrictions on Access: Gag Orders, Restrictive Orders, and Closure Orders

Access to Criminal Pretrial and Posttrial Procedures and Records

Access to Other Hearings and Trials

Practice Notes


In chapter 6, we described how law could either limit or facilitate access to government facilities and information. We also explained how law and subpoenas are used to access the information held by media representatives. Because there is no constitutionally required access to government facilities, mass communications practitioners must obtain permission to enter and cover courts and their records. In this chapter, we focus specifically on access to courts and other judicial proceedings by the public and press. The unique problems associated with cameras and recording devices are addressed in chapter 8.

This chapter is divided into six parts. The first part explains the conflict between the First Amendment freedoms of speech and press and the Sixth Amendment requirement to provide fair and impartial trials. This conflict is often called the “fair trial versus free press dilemma.” In this section, the rights of people accused of crime are juxtaposed against the rights of the public and press to be present during trials.

The second part of this chapter explains when trial coverage may be restricted and describes the judicial processes from which the press and public may be excluded. We also describe the proper nomenclature for three techniques used by trial courts to control court decorum and to protect the judicial process from media influence.

The third section covers public and press access to various criminal trials, and the fourth section describes access to pretrial and posttrial stages and to court records. This section describes the stages in the overall judicial process to show why some phases and records must be closed.

The fifth part of the chapter looks at miscellaneous hearings and trials. Here, we cover special rules for juvenile and family matters and describe the extraordinary variation in access to civil trials. We also cover the unique problems of access created by national security concerns since September 11, 2001.

In the practice notes, we provide practical suggestions for reporters who seek access to courthouses, personnel, records, and procedures. We also offer specific guidelines to follow when covering a trial and a motion for closure is made. The final practice note describes limitations on litigation public relations.

Introduction to Fair Trial Versus Free Press

To understand how public access to trials can conflict with litigants’ rights, one must first understand how trials work. We introduced trial procedure in chapter 2. Here, we expand that description to focus on the aspects of trials that can be altered by public or media presence.

Adversarial Versus Inquisitorial Trial System

The framers of the U.S. Constitution chose to adopt an adversarial rather than an inquisitorial trial system. In an inquisitorial judicial system, the judge acts as investigator, prosecutor, and as ultimate decision maker who determines guilt or innocence of an accused, as well as any sanctions to be imposed. Additionally, the judge may interrogate any person, including the accused.

On the other hand, in an adversarial judicial system, there are three roles, each played by a separate individual. These roles are prosecutor, defense attorney, and judge. In civil trials, these roles are the plaintiff’s attorney, the defendant’s attorney, and the judge. The prosecution and the defense are deliberately set at odds, each as an advocate for one side of the case. The judge sits as a referee, deciding what rules and what procedures to apply. Under the adversarial system, it is assumed that the truth will win if each side is encouraged to support his or her position with the greatest zeal possible. It is also assumed that witnessing the conflict between prosecution and defense will lead the trier of fact to the truth; and that, in the final analysis, justice will be done. For such a system to work, it is essential that the judge or jury be free from any outside influence and that an absolutely consistent procedure always be used.

Justice Requires Procedural Due Process

Trials are conducted in order to discover truth and to do justice. There is no objective way to verify whether the trial was successful. Simply put, if we had an independent or objective measure of truth or justice we would not need a trial. Because we cannot guarantee that justice has been done in any specific case, we must rely on the procedural due process by and through which a person accused of a crime can receive the opportunity to obtain justice. We presume that if a person accused of a crime has received the opportunity to obtain justice, then the victim and society as a whole will also receive justice. This opportunity to obtain justice is called due process or procedural due process. It relies completely on providing every defendant a consistent trial procedure.

The Fourth, Fifth, Sixth, and Eighth Amendments provide guidelines to help guarantee consistent trial procedures in criminal matters, and most, but not all, of these procedural requirements are incorporated into the due process clause of the Fourteenth Amendment and are, therefore, imposed on the states. In order to ensure a fair and impartial trial that follows due process, the jury must receive all of its information about the case from the trial participants. Because the media are not subject to the procedural rules of due process, it is important that judicial decision making be completely isolated from media reports. Without this isolation, jurors may be influenced by uncontrolled news coverage and the consistency of due process will be lost.

Conflict of Interests Inherent Between First and Sixth Amendments

The Sixth Amendment requires the government to provide a fair and impartial trial and the judicial system creates a fair trial by guaranteeing procedural due process. However, news coverage does not follow procedural due process and the First Amendment prohibits the government from restricting press freedom. This conflict is the heart of the fair trial versus free press dilemma. Simply put, it is impossible to have a truly fair trial that is covered by a completely free press. The Sixth Amendment guarantees an accused a fair trial by a panel of “impartial, ‘indifferent’ jurors . . . as a basic requirement of due process . . . [and requires that any] . . . verdict must be based upon the evidence developed at the trial.”2 However, this right conflicts with First Amendment liberties of the press and speech.

At common law, the conflict between fair trial and free press was resolved easily. Fairness of the trial always outweighed freedom of the public and press to access pretrial and trial processes.3 Trial courts understood and carefully enforced the rights of an accused to a fair trial by an unbiased jury. They took action to control the consequences of sensationalistic reporting or publication of evidence that would be inadmissible at trial. Also, until recently, the Sixth Amendment right to a fair trial belonged exclusively to the accused in a criminal proceeding. The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .” [emphasis added].4

Conflict between the provisions of the First and Sixth Amendment have motivated changes in the interpretation of the rights of accuseds and the freedoms of the press. Here, we review these changes and summarize how requirements for a fair trial and free press are currently balanced.

Near the beginning of every criminal action, the court tells the defendant of his or her rights and explains these rights on the record. This is done before the court accepts any waiver of rights by the defendant and makes it clear that these rights belong, under the Constitution, exclusively to the accused. In Gannett Co. v. DePasquale, the High Court considered a defendant’s unopposed motion to exclude the public and press from his pre-trial suppression hearing.5 The hearing involved an allegedly involuntary confession and certain physical evidence the state wanted to use at trial. The Supreme Court upheld the exclusion of the press and public from the pretrial proceeding. The sole issue presented in that case was “whether members of the public have an independent constitutional right to insist upon access to a pretrial judicial proceeding, even though the accused, the prosecutor, and the trial judge all have agreed to the closure of that proceeding in order to assure a fair trial” (emphasis added).6 In its decision, the Supreme Court first described the purpose and importance of suppression hearings. It said,

The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. . . . Publicity concerning the proceedings . . . could . . . inform potential jurors of inculpatory information wholly inadmissible at the actual trial.7

The Court went on to explain the danger to the fairness of a trial when pretrial publicity thrusts into public consciousness prejudicial material alleged about an accused, which would be wholly inadmissible at the actual trial. Then the Court explained that these rights specifically guaranteed by the Sixth Amendment, applicable to the states via the Fourteenth Amendment, are personal to the accused.

Among the guarantees that the Amendment provides to a person charged with the commission of a criminal offense, and to him alone, is the “right to a speedy and public trial, by an impartial jury.” The Constitution nowhere mentions any right of access to a criminal trial on the part of the public; its guarantee . . . is personal to the accused. . . . There is not the slightest suggestion there is any correlative right in members of the public to insist upon a public trial.8

The Court also recognized the strong societal interest in public trials by citing several advantages to openness in court proceedings. These included (a) improving the quality of testimony, (b) inducing unknown witnesses to come forward with relevant testimony, (c) causing all trial participants to perform their duties more conscientiously, and (d) generally providing the public with an opportunity to observe the judicial system at work.

Gannett Co. v. DePasquale dealt with a pretrial suppression hearing. Its holding does not apply to trials themselves. One year after the DePasquale decision, the Supreme Court considered the “narrow question . . . [of] whether the right of the public and press to attend criminal trials is guaranteed under the United States Constitution.”9 The decision was made in Richmond Newspapers v. Virginia, a case involving a defendant who was standing trial on a murder charge for the fourth time. His first conviction had been reversed on appeal, and two subsequent trials had ended in mistrials. At the beginning of his fourth trial, the Virginia trial court granted the defense counsel’s unopposed motion that the trial be closed to the public. Two Richmond Newspaper reporters were present in open court when the trial closure order was granted, but neither reporter objected at the time. Later in the day, the newspaper filed a motion to vacate the closure order and requested a hearing. The trial court denied the newspaper’s motion and the following day, with the press and public excluded, the court granted a defense motion to strike the prosecution’s evidence, released the jury, and entered a finding that the defendant was not guilty.

In Richmond Newspapers, a plurality of the Supreme Court held that “the right to attend criminal trials is implicit in the guarantees of the First Amendment . . . (a)bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.”10 The Court reasoned that under the Ninth Amendment, several rights not specifically enumerated among the Bill of Rights had been considered to be implicit in enumerated guarantees. In its examples the Court listed (a) the rights of association, (b) the rights of privacy, (c) the right to be presumed innocent, (d) the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, and (e) the right to travel. The Court went on to state that “without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.”11

The Supreme Court distinguished its decision in Richmond Newspapers v. Virginia from that in Gannett Co. v. DePasquale, noting that the Gannett Co. v. DePasquale decision only addressed hearings on pretrial motions.12

In Richmond Newspapers, the Supreme Court held that there is a qualified implicit First Amendment right of the public and press to attend criminal trials, and that the right is applicable to the states via the Fourteenth Amendment. It based this conclusion primarily on the common law in England and at the time of the adoption by the U.S. Constitution and Bill of Rights. This application of historic rights of access to places traditionally open to the public, is similar to the Court’s forum-based approach to time, place, and manner decisions about First Amendment Freedom of Speech Clause issues. This application has become a common thread, connecting its decisions involving public and press access to the judicial system, and is woven throughout the remainder of this chapter as well as chapter 8.

The Richmond Newspapers decision dealt with a trial closure order that was based on a Virginia statute authorizing trial closure at the discretion of the judge when requested by the parties. A plurality of the Supreme Court found this statute a violation of the First and Fourteenth Amendments. The Court specifically ruled that a trial court could not close criminal trials, absent (a) an overriding interest articulated in its findings, (b) which supported such a closure, and (c) specific inquiry by the trial court about whether alternative solutions would have met the need to ensure trial fairness. In dicta, the Court also suggested that there were several alternatives to closure that a trial court should consider. Those were (a) excluding witnesses from the courtroom, (b) sequestration of witnesses during trial, and (c) sequestration of jurors. The elements required to overcome the presumption that trials one after are summarized in Exhibit 7.1.

Exhibit 7.1.  Elements for Closure (Richmond Newspapers v. Virginia, 448 U.S. 555 [1980]; Globe Newspaper Co. v. Superior Court, 457 U.S. 596 [1982]).

If a judicial procedure is presumed open, before a court may order it closed all of the following conditions must be met:

  1. There is an overriding governmental interest in closure.
  2. The closure is essential to meet that interest.
  3. The closure is narrowly tailored to meet the interest.
  4. All three of the above must be shown on the record in the trial or hearing.

The Supreme Court’s decision in Richmond Newspapers granted the public and press a qualified implicit right of access under the First Amendment to criminal trials. However, two major questions loom before trial courts after Richmond Newspapers. The first is, how can the courts balance the explicit Sixth Amendment rights of an accused to a trial by an impartial jury with the new qualified implicit right of the public and press to attend criminal trials? The second question is, how can a trial judge control courtroom decorum and ensure that information given to jurors will come only from properly admitted testimony and exhibits in the face of pretrial and trial disclosures of inadmissible evidence by the press and public?

Restrictions on Access: Gag Orders, Restrictive Orders, and Closure Orders

Traditionally, trial courts have used three methods to control pretrial publicity or prevent the impact of prejudicial, inadmissible, and false or inaccurate material regarding a case or an accused from tainting a jury panel. The U.S. Supreme Court has ruled some of these permissible and some unconstitutional. They are gag orders, restrictive orders, and closure orders.

Gag Orders: Unconstitutional Prior Restraint

The most stringent attempt by trial courts to control the flow of pretrial information is the use of a restraining order to forbid media coverage. Often pejoratively referred to as gag or muzzle orders, such orders forbid the media to report specific facts or to cover specific topics. These orders have almost uniformly been declared unconstitutional under the First Amendment. In a line of cases beginning with the 1931 landmark decision in Near v. Minnesota,13 the Supreme Court has held that prior restraint against media publication of information already in its possession, no matter how it was obtained, is unconstitutional on its face or bears a heavy presumption against its constitutionality.14

The Supreme Court directly addressed the issue of prior restraint in relation to widespread news coverage of a pending murder trial in Nebraska Press Association v. Stuart.15 In that case, the trial judge made the mistake of allowing the public and press to be present at an open preliminary hearing in a murder case. The judge then entered an order restraining the news media and wire services from publishing or broadcasting accounts of an alleged confession. The restraining order also precluded publication of “other facts ‘strongly implicative’ of the accused.”16

The Supreme Court said the issue it granted certiorari to decide in Nebraska Press Association was “whether the entry of such an order . . . violated the constitutional guarantee of freedom of the press.”17 The Supreme Court saw several problems, including the trial court’s inability to control the actions of newspapers and broadcasters outside its jurisdiction, which could also reach potential jurors.

The Supreme Court began its analysis by noting the requirement that jurors cannot be subject to outside influences from the media. It continued by pointing out that cases dealing with the First Amendment have held freedom of the press is not an absolute right but, “that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”18 Next, the Supreme Court applied a standard from earlier rulings on prior restraint. Using this standard, it examined the restraining order to determine whether “the gravity of the ‘evil,’ [to be avoided] discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”19 The Court then developed a three-pronged test to determine whether the facts supported prior restraint on publication, which it described as “one of the most extraordinary remedies known to our jurisprudence.”20 The test applied by the Court considered:

(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. The precise terms of the restraining order are also important.21

After applying its test to the pretrial record, the Supreme Court concluded that the trial judge had met only the first part of its test in that he was indeed justified in concluding that there would be “intense and pervasive pretrial publicity . . . [and the] publicity might impair the defendant’s right to a fair trial.”22 But, the trial court had not considered other measures to protect the defendant’s rights and had not explored whether the restraining order would be effective. The Supreme Court also found the trial court’s prohibition regarding implicative information was too broad and too vague to survive the protections we give First Amendment freedoms.23 The Supreme Court ended with its holding, saying,

We hold that . . . the order entered in this case prohibiting reporting or commentary on judicial proceedings held in public . . . is clearly invalid . . . and the judgment of the Nebraska Supreme Court is therefore . . . Reversed.24

Simply put, it is unconstitutional for a judge to order media not to print or broadcast information they already have from legal sources.

Posttrial Publication Restraints Also Unconstitutional

Restraining orders prohibiting media disclosure of information obtained in criminal cases are prior restraint and are prohibited by the First Amendment; so too are state statutes that punish posttrial publication violations. Several cases by the Supreme Court have addressed the constitutionality of state statutes aimed at protecting certain classes of defendants, victims, or sources of information about pending investigations or criminal cases. In 1978 the Supreme Court, in Landmark Communications, held that the First Amendment guarantees of freedom of speech and press prohibited enforcement of a state law punishing third parties, including the media, for publishing truthful information regarding proceedings of the Virginia Judicial Inquiry and Review Commission.25 The law purported to protect the confidentiality of judges under investigation. The Supreme Court did not hold the entire statute unconstitutional. Rather, the High Court said its application to the press, who were not participants in the proceedings, was unconstitutional.

The Supreme Court decision in Smith v. Daily Mail held a West Virginia statute to be an unconstitutional violation of the First Amendment.26 The statute made it a crime for a newspaper to publish the lawfully obtained names of youths charged as juvenile offenders. The statute was ruled unconstitutional because it only restricted publication of the names of juvenile delinquents by newspapers, and did not restrict the electronic media or any other form of publication. While the statute might serve a state interest of the highest order in attempting to protect juvenile offenders from publicity that would have a harmful impact on their rehabilitation, the means chosen by the statute to accomplish its goals could not satisfy constitutional requirements.

The 1990 decision in Butterworth v. Smith struck down as an unconstitutional violation of the First Amendment, applicable to the states via the Fourteenth Amendment, a Florida statute that prohibited grand jury witnesses from disclosing their own testimony after the grand jury investigation had ended. The Court reiterated its reasoning from Landmark Communications saying, “(o)ur prior cases have firmly established . . . that injury to official reputation is an insufficient reason for repressing speech that would otherwise be free.”27 The Court also held the First Amendment precluded a state from imposing damages for publication of a rape victim’s name; and in Oklahoma Publishing Co. v. Oklahoma County District Court the Supreme Court held that a state could not constitutionally enjoin the publication of a juvenile offender’s name.28

Similarly, the Supreme Court has held, in a number of cases, that state courts cannot constitutionally assert and exercise their common law powers to punish, by contempt, out-of-court publications that were critical of their handling of pending cases. Several state courts, in response to such criticism, had held reporters, editors, cartoonists, publishers, and an elected sheriff guilty of criminal contempt charges after finding their statements had obstructed the orderly and fair administration of justice in pending cases. The types of speech viewed by these local courts as contemptuous involved (a) thinly veiled threats of possible legal and other consequences if a preferred decision was not made,29 (b) two editorials and one cartoon highly critical of a local court’s handling of a series of pending criminal cases,30 (c) vitriolic attacks by a newspaper on a Texas non-lawyer judge’s decision in a forcible entry and detainer case still pending at the time of the articles,”31 and (d) a written press statement by a local sheriff criticizing a county judge’s special charge and instructions to a grand jury investigating alleged bloc voting by African Americans.32

In its judicial review of these contempt convictions, the Supreme Court applied the clear and present danger test to determine whether the gravity of the evil to be prevented would outweigh or overcome the restrictions on speech and press. In Bridges v. California the Court restated and applied the doctrine it first enunciated to fit these circumstances in 1919 in Schenck v. United States:

The clear and present doctrine requires a weighing of the evidence and a determination ‘whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about’ a substantial interference with the orderly administration of justice.33

The Supreme Court found that courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action, but it also found that the right of courts to be free from intimidation, in these cases, did not outweigh freedom of the press. Therefore, the contempt citations were all overturned.

Restrictive Orders Against Trial Participants

Court orders restraining members of the media from publishing lawfully obtained information are unconstitutional. However, there is no general prohibition against court-imposed restrictions on trial participants, court personnel, or law enforcement officers. It is inaccurate to refer to such orders as gag orders. They do not involve prior restraint on the right to publish information. Orders prohibiting trial participants, court personnel, and police from disclosing information are more accurately called nondisclosure orders or restrictive orders. Because the courts recognize the need to ensure cases are not tried in the “press,” such orders against trial participants are constitutional and are enforceable by both civil and criminal contempt proceedings. Nondisclosure orders have consistently been upheld and listed as one of several methods that may be used to prevent improper information from reaching potential jurors or tainting the testimony of witnesses. Trial courts can legitimately enforce restrictive orders against all law enforcement personnel, judicial personnel, courthouse employees, parties in a case, attorneys in a case, witnesses in a case, and jurors.

In summary, a restraining order issued against media disclosure of lawfully obtained information is unconstitutional prior restraint or censorship. However, restrictive or nondisclosure orders against trial participants and their staffs are not an abridgement of their First Amendment rights because the very nature of their positions as participants within the judicial system requires them to keep information confidential. Nondisclosure orders also have no impermissible effects on freedom of the press. Although the media are free to publish the information they gather, they have no Constitutional right to gather information. The government, as sovereign, is entitled to refuse to give information to the public or the press. This means that public relations practitioners representing the courts or law enforcement agencies have no legal duty to provide releases or information in response to press inquiries.

Closure Orders

Since its 1980 decision in Richmond Newspapers the Supreme Court has interpreted the First Amendment to give an implied and qualified right of public access to attend criminal jury trials.34 This is not an absolute right but it does belong to the public, including members of the media. Under this ruling, a court may close a criminal trial only when closure is required to protect a defendant’s Sixth Amendment right to a fair trial, or when some other overriding consideration requires closure. This ruling may conflict with state statutes mandating trial closure during trials of sex offenses or involving victims under the age of 18. Such statutes are sometimes referred to as witness protection laws or shield laws, but should not be confused with the state statutory privilege laws sometimes applied to media described in chapter 6.

In the 1982 case of Globe Newspaper Co. v. Superior Court, the Supreme Court addressed a Massachusetts statute that had been construed by the Massachusetts Supreme Judicial Court to require exclusion of the public and press during the testimony of minor victims in sex offense cases. The U.S. Supreme Court agreed that the state’s interest in safeguarding the physical and psychological well-being of a minor witness was compelling. But, it held the statute was unconstitutional because the state had not shown that the mandatory closure statute was narrowly tailored to serve that interest. According to the Supreme Court, the trial court had to determine whether a closure order was narrowly tailored to meet the state interest on a case-by-case basis. A blanket statutory closure rule is an unconstitutional violation of the First and Fourteenth Amendments. The Court said that a trial court must weigh various factors in such cases before ordering a trial closure. Those factors include (a) the minor victim’s age, (b) the victim’s psychological maturity and understanding, (c) the nature of the crime, (d) the desires of the victim and his or her willingness to testify despite the presence of the press, and (e) the interests of parents and relatives of the victim.35

It is important to remember that the criminal jury trial is the culmination of a long series of steps, many of which have taken place well before the public and press have been granted access to the victim’s testimony at trial. The Supreme Court’s 1980 plurality decision in Richmond Newspapers granted only a qualified and limited right of access for the press to criminal trials. It is useless and confusing to attempt to generalize from the Richmond Newspapers decision. In the first place, the Richmond Newspapers opinion was a plurality decision, which means it is not mandatory authority and is less likely to be followed than are other Supreme Court decisions. Second, the situation in Richmond Newspapers was unusual because it involved closing the defendant’s fourth trial for the same crime. Finally, it dealt only with a criminal trial closure and the court offered no ruling on closure of other judicial procedures.

Since the Richmond Newspapers decision, the court has issued several opinions dealing with public access to specific pretrial procedures. Access to judicial proceedings for both the public and media vary depending on the particular judicial procedure involved. The next section of this chapter addresses access to specific pretrial and posttrial procedures.

Access to Criminal Pretrial and Posttrial Procedures and Records

Here we summarize decisions regarding access to pre- and posttrial procedures. This material is arranged following the chronology in which the procedures would be encountered by a typical criminal defendant. In order to understand these rules, it is imperative that any reporter who covers court proceedings knows the proper terms for the various judicial procedures used in their jurisdictions, as well as those generally used by the federal and state courts.

Search Warrant Materials

There is no First Amendment right of access to search warrant materials. Most jurisdictions have statutes or court rules requiring these documents to be sealed because the government’s case on behalf of the people would be totally compromised if these materials were made public.

There is no U.S. Supreme Court decision on point. However, the U.S. Court of Appeals for the Ninth Circuit, in a case of first impression, held “the First Amendment does not establish a qualified right of access to search warrant proceedings and materials while a preindictment investigation is still ongoing.”36

Grand Jury Proceedings: Secrecy is a Functional Requirement of the Process

The secrecy of grand jury proceedings, processes, and records has always been vigorously protected by the courts. In Butterworth v. Smith the U.S. Supreme Court described the history of the grand jury process and also explained the importance of secrecy to its proper function:

We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings.37

The Court went on to list reasons for grand jury secrecy. Those reasons included (a) encouraging and protecting witnesses, (b) preventing the flight of those under investigation, and (c) protecting the reputation of people who are investigated and exonerated.

In Illinois v. Abbott, the U.S. Supreme Court even refused disclosure of federal grand jury materials to an Illinois State Attorney General because he failed to show “particularized need.” Relying on Rule 6(e) of the Federal Rules of Criminal Procedure, the Court emphatically stated that the Attorney General of the United States is not permitted to disclose any grand jury proceedings to a state attorney general unless he or she is directed to do so by a court. In that case, the court stressed both the importance of secrecy to the grand jury process, and the fact that these interests must be protected even after the termination of criminal proceedings.38

Preliminary Hearings: California Style Presumed Open, Others Presumed Closed

In Press-Enterprise Co. v. Superior Court, the issue was “whether the petitioner had a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.”39 The U.S. Supreme Court held that “the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as they are conducted in California” (emphasis added).40 The case involved the unusual California procedures wherein the prosecutor has a choice of securing a grand jury indictment or a finding of probable cause following a preliminary hearing. However, even when an accused has been indicted by a grand jury, she or he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. The U.S. Supreme Court limited its narrow holding to preliminary hearings as they are conducted in California because California-style preliminary hearings are “sufficiently like a trial to justify the . . . conclusion”(emphasis added).41 California-style preliminary hearings are also unusual because they give an accused the right to personally appear and be represented by counsel and also allow cross-examination of hostile witnesses, presentation of exculpatory evidence, and exclusion of illegally obtained evidence.

In most states, a preliminary hearing is a perfunctory procedure presided over by a judge who hears a general summary of the investigation conducted by the police and then decides whether there is sufficient probable cause to bind a defendant over for trial. The defendant has a right to appear at the hearing with counsel, but the defense counsel is allowed only a limited cross-examination of the witnesses presented by the prosecution. The only witnesses are almost always the law enforcement officers who were in charge of the investigation and who are permitted give their interpretations of multiple hearsay statements that are impossible to cross-examine. The defense is not allowed to present evidence or witness testimony. These non-California-style preliminary hearings serve the same function as a grand jury and have not been presumed to be open to the public or press.42 Opening a non-California-style preliminary hearing to the public and press would be just as damaging to the concept of a fair trial by an impartial jury as would be opening grand jury proceedings to the public and press.

Motions to Suppress Evidence or Confessions: Closed by Motion of Defendant; Otherwise Presumed Open

In our discussion of control of the right to a public trial we described the case of Gannett Co. v. DePasquale. In that decision, the U.S. Supreme Court upheld exclusion of the public and press from hearings on a defendant’s motions to suppress evidence. The closure motion in that case was made by the defendant and was unopposed by the state.43 Five years after the DePasquale decision, the High Court rendered a decision on “the extent to which a hearing on a motion to suppress evidence may be closed to the public over the objection of the defendant.”44

Waller v. Georgia dealt with the prosecution’s use of court-authorized wiretaps of telephones by Georgia police in an investigation of an illegal lottery. These wiretaps formed the basis for search warrants that were followed by indictments against several defendants. In Waller, it was the prosecution that requested closure of the pretrial hearings on the defendant’s motions to suppress the wiretaps and evidence. The defendants were co-conspirators and they objected to the closure. Over these objections, the trial court closed the suppression hearing to all but witnesses, court personnel, the parties, and the lawyers. The prosecution contended that information in the wiretap tapes would either invade the privacy rights of innocent, unindicted persons or would provide warning to still unindicted potential defendants.

On appeal, the U.S. Supreme Court first ruled that when a defendant objected to closure of a motion hearing there was a heavy presumption of openness. The Court then said,

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. (emphasis added)45

The High Court went on to say that the trial court had failed to give proper weight to the defendant’s Sixth Amendment right to a public trial. It remanded the matter to the Georgia courts with instructions to hold new and public suppression hearings.46

The result of these decisions is that hearings on pretrial motions to suppress may be closed on motion by the defendant. But if the defendant objects to closure, pretrial suppression hearings are presumed open and may be closed only if the court finds an overriding government interest based on findings on the record and that the closure is essential and narrowly tailored to meet that government interest.47

Voir Dire Jury Selection Proceedings Presumed Open

Press-Enterprise Co. v. Superior Court involved a trial for the rape and murder of a teenage girl.48 The decision in that case contains a statement of the current qualified right of access to voir dire proceedings. Before the voir dire phase of the trial began. Press Enterprise Company moved that the jury selection process be open to the public and press. The state opposed the motion because of the nature of the crime and the fact that both the state and defense counsel would ask personal and private questions of the potential jurors. During voir dire potential jurors would be asked questions such as whether they or close relatives or friends had been raped and/or sexually assaulted. The state argued that if the press were present, the potential jurors would not be as candid and forthcoming because these very private matters would be reported to the general public. The trial judge agreed and although he permitted the press to attend the general voir dire proceedings, which lasted only 3 days, he closed the “individual” voir dire proceedings that took approximately 6 weeks. Additionally, after the jury was empanelled. Press Enterprise Company moved for release of a complete transcript of the voir dire proceedings. Both the prosecution and defense objected, and the trial court again denied the motion. Finally, after the defendant had been convicted and sentenced to death, Press Enterprise Company made and the trial court denied a second request for release of the voir dire transcript.

The case ultimately reached the U.S. Supreme Court, which ruled that there could be some circumstances in the jury selection process, when interrogation might touch on “deeply personal matters . . . [that prospective juror would have] legitimate reasons for keeping out of the public domain”49

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